McKerracher J
Background
This case involved three cross-claims brought by Chevron Australia Pty Ltd, the State of Western Australia and Onslow Salt Pty Ltd against the Buurabalayji Thalanyji Aboriginal Corporation (BTAC). In August 2019 the Court ordered that the cross-claims be heard separately to, and in advance of, the principal native title claim, as they dealt with a preliminary question. In each of the three cross-claims, the cross-claimants sought to rely on certain terms of a Native Title Agreement between BTAC and Chevron in relation to the Wheatstone Project which purported to operate as a bar to BTAC’s principal claim under a covenant not to be sued. By order made on 24 September 2020, BTAC was required to file witness statements it proposed to rely on at the hearing of the cross-claims on or before 8 October 2020. Failure to comply with that order would have resulted in substantial parts of BTAC’s defences to the cross-claims being struck out (the springing order). By interlocutory application filed on 5 October 2020, BTAC sought:
That the programming orders be reformulated to enable the cross-claims to be relisted in February to April 2021;
An opportunity to file amended defences to the cross-claims;
An additional six weeks to file its evidence; and
The vacation of the springing order.
In support of its application, BTAC relied heavily upon an affidavit of Ms Tannock, its solicitor, affirmed and filed on 5 October 2020 and a second affidavit of Ms Tannock, affirmed 12 October 2020. By order made 6 October 2020, the springing order was vacated until the delivery of the interlocutory hearing on 12 October 2020. At the conclusion of that hearing, the vacation of the springing order was further extended until the delivery of this judgment.
Applicable Principles
The question to be decided was whether it was in the interests of justice to grant the interlocutory relief sought by BTAC. The Court held that a determination of what the interests of justice require in a particular case does not proceed on a consideration of the parties’ interests alone. Case management principles relevant to the overall disposition of proceedings will be relevant. Furthermore, it is the moving party who bears the onus of establishing the need for the relief. Although there are no fixed criteria, the following matters were relevant:
Whether the moving party had provided an explanation for why the relief was required and, if so, whether the need for relief was because of that party’s decisions and actions;
The timeliness of the application
Case management principles, including those prescribed by s 37M of the Federal Court of Australia Act 1976 (Cth), and the effect of granting the relief;
The consequences to the parties of granting or not granting the relief.
Reasons For Decision
His Honour noted that no evidence had been given by the special administrator or any officers of BTAC. While there was evidence as to understandable delay in obtaining advice from busy senior counsel, that delay did not mean that nothing could be done in the meantime on the narrow issue arising on the preliminary question.
His Honour also cited the need to supply the further evidence. His Honour concluded that the evidence was by no means in a completed form, and there was no reason given for the state it was in, and no cogent reason as to why the evidence could not be prepared in advance of the current hearing dates. There was also no evidence as to any difficulty gaining access to the evidence required.
As to the possibility of a new argument or defence being belatedly raised, no information had been provided as to the nature of any possible amended defence, let alone the precise content of it. In His Honour’s view, BTAC had more than sufficient opportunity to prepare its case on the preliminary question, especially given how narrow it was. The considerations by the respondents were found to be largely correct and BTAC had failed to provide sufficient reasons as to why the discretion to grant relief should be exercised.
In weighing up the impact not granting the relief sought would have on the individual people BTAC was representing, His Honour was of the view that any prejudice they may suffer was outweighed by other factors. In coming to this conclusion, he relied on prejudice to the cross-claimants in light of the procedural history to date and the nature of the evidence adduced in support of the application.
Decision
For the above reasons, the application to grant the relief sought was unsuccessful. The Court ordered that BTAC finalise and file the evidence they wish to rely on within five days of this decision being made otherwise the representation would be struck out. BTAC was also ordered to pay the respondents costs of the unsuccessful application.